Front Page Titles (by Subject) CHAPTER VII: The Progress of Science relative to Law and Government. - An Historical View of the English Government
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CHAPTER VII: The Progress of Science relative to Law and Government. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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The Progress of Science relative to Law and Government.
As the advancement of commerce and civilization tends to promote the virtue of strict justice, it of course disposes mankind to cultivate and improve the science of law. By attention and experience, and by a gradual refinement of their feelings, men attain a nicer discrimination in matters of right and wrong, and acquire more skill and dexterity in settling the claims and disputes of individuals, or in proportioning punishments to the various offences which may invade the peace of society.
There is this remarkable difference between justice and the other virtues, that the former can be reduced under general rules, capable, in some degree, of accuracy and precision; while the latter, more uncertain and variable in their limits, can frequently<267> be no otherwise determined than from a complex view of their circumstances, and must, in each particular case, be submitted to the immediate decision of taste and sentiment.1 Justice requires no more than that I should abstain from hurting my neighbour, in his person, his property, or his reputation; that I should pay the debts, or perform the services, which by my contracts, or by the course of my behaviour, I have given him reason to expect from me; and that, if I have ever transgressed in any of these particulars, I should make a suitable compensation and reinstate him, as far as possible, in those advantages of which I have unwarrantably deprived him. The line of duty suggested by this mere negative virtue, can be clearly marked, and its boundaries distinctly ascertained. It resembles a matter of calculation, and may, in some sort, be regulated by the square and the compass.
But the other virtues, those more especially which lead us to promote the positive happiness of our neighbours, admit of a greater variety of aspects, and are of a more delicate nature. What is the precise beha-<268>viour consistent with the most perfect friendship, generosity, gratitude, or other benevolent affections, may often be a difficult question; and the situations which give rise to the complete exercise of those virtues are so diversified by a multiplicity of minute circumstances, that there seldom occur two instances altogether alike; and there is no room for determining any number of cases according to the same general view.
Though mankind, therefore, have in all ages, given a very universal attention to morality, though their constant aim and endeavour has been to recommend themselves, one to another, by practising, or by seeming to practice, those virtues which procure esteem, or affection and confidence—they have made, after all, but slender advances in digesting their knowledge upon the subject, and in reducing it to a regular system. Philosophers have been able to do little more than to exhibit a description or picture, more or less animated, of the principal virtues and vices, together with their various combinations in the characters of individuals, and at the same time to suggest<269> considerations and views, which, from the condition of human nature, are likely to produce an admiration and love of virtue, as well as a detestation and abhorrence of vice.
The first moralists, among an ignorant and simple people, were contented with giving general advices, for the benefit of such as were destitute of experience, to guard against the temptations to vice, and the irregular influence of the passions. Parents, desirous of promoting the welfare of their children, men of sagacity, who, in the course of a long life, had surveyed the vicissitudes of human affairs, were induced to communicate the fruits of their experience, and to inculcate such observations and maxims as might correct the errors and imprudencies to which mankind are peculiarly liable. Hence the numerous proverbs which have been circulated in all nations, containing such moral and prudential maxims, as, from an apparent shrewdness of remark, from strength or felicity of allusion, or from any peculiar point of expression, were thought worthy of atten-<270>tion, and frequently repeated. Of a similar nature, but uniting, in some cases, a train of reflections upon the same subject, are those observations, and advices, relating to the conduct of life, which have been collected by early writers, or delivered by ancient sages of high reputation; such as, the proverbs of Solomon, the words of Agur, the wisdom of the son of Sirah, a part of the writings of Hesiod, and the sayings of those who are denominated the wise men of Greece.2
Succeeding writers endeavoured to explain and enforce these observations and maxims by historical events, real or fictitious; and to illustrate their truth, by allegorical representations, taken from the brute creation, or from those different parts of nature in which we may trace any resemblance to human actions and passions. Of this latter sort are the parables of Scripture, the fables known to us by the name of Pilpay,3 which appear to have enjoyed a very ancient and extensive reputation in the eastern world; and those of equal celebrity in Europe, which are ascribed to Aesop,<271> and which have been translated, paraphrased, and embellished by such a multitude of eminent authors. Even after those early observations, from the general diffusion of knowledge, have ceased to convey much instruction, the apologue or fable, has continued, with several men of genius, to be a favourite mode of composition, on account of the delicate strokes with which it is capable of exhibiting the follies and foibles of human life.4
When men had been accustomed to consider in detail the several branches of human conduct, they were led by degrees to more connected views, and extensive reasonings. They were led to enumerate and arrange the principal virtues and vices, and to distribute them into different classes, according to the various feelings or passions, from which they proceed, or the different ends to which they are directed. The celebrated and well known division of the virtues into four great classes, usually denominated the four cardinal virtues,5 which has been handed down to us by the Greek and Roman writers, and which is reported to have been<272> brought by Pythagoras6 from the east, appears to be a very ancient, and at the same time, a successful attempt of this nature.
The arrangement and classification of the several virtues, could hardly fail to occasion enquiries and discussions concerning the peculiar character of each; and more especially to suggest an examination of the circumstances by which all the virtues are distinguished from the opposite vices. This gave rise to the far-famed question, Wherein consists virtue?
The great distinction between virtue and vice appears to consist in the different sentiments which they excite in the beholders, and in their opposite tendency, to produce happiness or misery to mankind.
There is in virtue a native beauty and excellence, which is felt and acknowledged by all the world; which, from the immediate contemplation of it, and without regard to its consequences, is the genuine source of pleasure and satisfaction; and which procures to the person in whom it is discovered, universal love and esteem, with various modifications of benevolence. The natural<273> deformity of vice; the disgust and aversion with which it is regarded; and the contempt and abhorrence, or the indignation and resentment which it excites, are no less conspicuous. That these feelings exist in the human mind is indisputable: but whether they are simple and original feelings, intended by nature for this purpose alone; or whether they are excited from different views and reasonings, and consequently, are capable of explanation and analysis, has been the subject of much philosophical disquisition; a disquisition highly curious and interesting to the lovers of metaphysical knowledge; though, in relation to practical morality, of little or no importance.
The tendency of all virtuous actions to produce happiness, either to the person who performs them or to others, and the contrary tendency of all vicious actions, are considerations, which, to the bulk of mankind, will appear of still greater magnitude, in creating a preference of the former to the latter. In this view, those virtuous actions which promote a man’s own good, are agreeable to a spectator, from those bene-<274>volent feelings which render him pleased with the happiness of the person who performs them; while those actions which promote the good of others, gratify the selfish feelings of the spectator, and call forth a sort of gratitude from every person who conceives himself within the sphere of their beneficial influence. We need not be surprised, therefore, that men should universally bestow much higher applause upon the benevolent, than upon the selfish virtues; or that some eminent philosophers have considered the latter in the light merely of useful qualities, which are not the proper objects of moral approbation. The person who performs a benevolent action appears in the light of a benefactor; and, as we readily suppose ourselves to be the objects of his beneficence, we feel, upon that account, a disposition to make a suitable return of good offices; we look upon him as peculiarly worthy of our good will and affection; and are thence led to form a notion of his meriting a reward.
From considering the beneficial tendency of all the virtues, philosophers proceeded<275> to a more general enquiry, concerning the supreme good or happiness of mankind, and the circumstances by which it is produced; whether it be produced by virtue alone, or by what is called pleasure, or from the union and co-operation of both?
Such appear to be the principal steps by which men have advanced in cultivating the general science of morality, which have undoubtedly been of great utility in presenting such views and considerations as were fitted to awaken the noblest and best affections of the heart; but which often terminating in vague reflection, or speculative disquisition afford no specific information, no precise land-marks for the regulation of our conduct. If we do not miss our way in the journey of life, it is more from our general knowledge of the compass, than from any directions we receive concerning the several windings and turnings of the road.
But in relation to strict justice, the attention of mankind has been excited and directed in a different manner, and has produced an examination of particulars much more minute and accurate. As individuals who<276> have much intercourse, are likely, on many occasions, to experience an opposition of interest, and if they are independent of each other, must be liable to numerous disputes in matters of right, they have in the infancy of society, no other method of terminating any difference which cannot be amicably adjusted than either by fighting, or by referring it to the decision of a common arbiter; and this latter mode of accommodation, which flatters the sanguine expectations of either party, and which, by preventing a quarrel, must commonly be agreeable to their private friends, as well as to the friends of good order and public tranquillity, is likely to be more frequently adopted in proportion as, by the habits of living in society, people become less quarrelsome in their temper, and more under the guidance of prudence and discretion.
The arbiters most frequently chosen on those occasions, will probably be persons who from their eminent reputation for wisdom and integrity, possess the confidence of both parties, and by their high station, and superior influence, are capable of giving<277> weight to their decisions. The longer these men have officiated in the same employment, provided they have acted with tolerable propriety, the respect paid to their opinions will be the greater, and the disposition to treat them with deference and submission, will become the more habitual. Their own efforts to render their sentences effectual will also, from considerations of expediency, be supported by the general voice of the community; till at length, by the assignment of an armed force to assist them in enforcing obedience, they are invested with power to determine law-suits independent of any reference of parties, and thus, in the natural progress of things, are converted into regular and permanent judges.
Corresponding to the advices and prudential maxims which are circulated by men of experience and observation, in the primitive cultivation of morality, are the decisions of arbiters and judges, which constitute the foundation of the science of law. From the various disputes of individuals, and from the various claims that are successively decided<278> and enforced, there is formed a set of practical rules of justice, which are gradually multiplied, and according to the different situations and relations of mankind in society, gradually extended and diversified.
The disputes among mankind are innumerable; but as one dispute is often very like another, it is apt to be decided in a similar manner; and when a number of cases have been determined upon the same grounds, there is introduced a general rule, which from the influence of habit and of analogy, is extended, even without examination to other cases of the same kind. Though this procedure originates in a propensity natural to all mankind, it is doubtless recommended and confirmed by its utility. The general rules of law are of signal service, by enabling every person to simplify his transactions, as well as to ascertain the tenor of conduct which he is bound to maintain, and by proving at the same time, a check to the partiality of judges, who must be ashamed or afraid to deviate from<279> that beaten path, which is universally known, and easily distinguished.
The advantages, however, arising from the general rules of justice, are not without limitations. When a great number of claims are decided from the consideration of those outlines in which they all agree, the smaller circumstances in which they happen to differ must of course be overlooked; and the decision may, therefore, in some instances, be productive of injustice. This is the foundation of that old complaint, which, in every country, has been made against the extremity of the law. It is necessary, for this reason, to forego in many cases, the benefit of that uniformity and certainty derived from the strict observance of a general rule, and by introducing an exception from the consideration of what is equitable in particular circumstances, to avoid the hardship which would otherwise fall upon individuals. We must on this as on many other occasions, compare and balance the inconveniencies which present themselves on opposite sides, and be contented with submitting to those which are of the least importance.<280>
The interpositions of equity, which are made in detached and singular circumstances, are at first regarded as extraordinary deviations from that legal maxim, which however just and expedient in other cases, is found in some particular instance, to be hard and oppressive. But when these interpositions have been often repeated in similar situations, they become familiar and habitual; and such of them as depend upon a common principle, are reduced into the same class, the boundaries of which are precisely determined.
In this manner, by the successive litigation of individuals, and by the continued experience and observation of judges, the science of law grows up in society, and advances more and more to a regular system. Particular decisions become the foundation of general rules, which are afterwards limited by particular exceptions; and these exceptions being also generalized, and reduced into different classes, are again subjected to future limitations. From a few parent stems, there issue various branches; and<281> these are succeeded by subordinate ramifications; diminishing gradually in size, while they increase in number; separated from each other by endless divisions and subdivisions; exhibiting a great multiplicity and variety of parts, uniformly and regularly adjusted; and which may, therefore, be easily and readily traced through all their different connections.
But though the rules of justice derive their origin from the business of the world, and are introduced by the actual decisions of judges, their extensive utility is likely to attract the notice of speculative reasoners, and to render them the subject of criticism and philosophical discussion. As from various causes the practical system of law in any country is apt, in many respects, to deviate from that standard of perfection which nature holds up to the speculative mind, the detecting of its errors and imperfections, and the display of its peculiar advantages, become an agreeable exercise to men of ingenuity and reflection; and from such disquisitions, it is reasonable to expect that the<282> knowledge of mankind will be extended, their prejudices corrected, and useful improvements suggested.
In speculating upon the system of law in any country, it is natural to compare it with other systems, and by examining and contrasting the respective advantages or disadvantages of each, to explain and illustrate the nature and tendency of different regulations. From these comparisons, pursued extensively, and accompanied by such reflections as they must naturally suggest, philosophers at length conceived the idea of delivering a system of law, free from the defects which occur in every practical establishment, and which might correspond in some measure, with our views of absolute perfection; a noble idea which does not appear to have entered into the imagination of any Roman or Greek writer, and which may be regarded as one of the chief improvements in the philosophy of modern Europe. Hence the system of jurisprudence, which, after the revival of letters, has occurred in such multitudes, and which has been dressed in different shapes, and with<283> different degrees of accuracy by Grotius and other speculative lawyers.7
It must be acknowledged, that the execution of those works has not equalled the merit of the attempt. Although they profess to deliver the rules of justice, abstracted from the imperfections of every particular establishment, they appear, for the most part, to follow implicitly, at least, in several particulars, the ancient Roman system, which, notwithstanding the consideration and celebrity it had very deservedly attained, is in many of its doctrines erroneous, and in some of its principles narrow and illiberal.
A more material defect in most of the writers on jurisprudence is their not marking sufficiently the boundaries between strict law and mere morality. They seem to consider, what a good man, from the utmost propriety of feelings and scruples of conscience, would be disposed to do, rather than what an upright judge would compel him to perform, and are thus led frequently to confound what is properly called justice (which requires that we should avoid hurting our neighbours,) with generosity or benevolence,<284> which prompts us to increase their positive happiness.
The attempts to delineate systems of jurisprudence, which have been so often repeated with more or less perspicuity or conciseness, but with little variation in substance, opened at length a new source of speculation, by suggesting an enquiry into the circumstances which have occasioned various and opposite imperfections in the law of different countries, and which have prevented the practical system, in any, from attaining that improvement which we find no difficulty in conceiving.8 In the prosecution of this inquiry, more especially by President Montesquieu, by Lord Kames,9 and by Dr. Smith, the attention of speculative lawyers has been directed to examine the first formation and subsequent advancement of civil society; the rise, the gradual developement, and cultivation of arts and sciences; the acquisition and extension of property in all its different modifications, and the combined influence of these and other political causes, upon the manners and customs, the institutions and laws of any people. By tracing in this<285> manner the natural history of legal establishments, we may be enabled to account for the different aspect which they assume in different ages and countries, to discover the peculiarity of situation which has, in any case, retarded or promoted their improvement, and to obtain, at the same time, satisfactory evidence of the uniformity of those internal principles which are productive of such various and apparently inconsistent operations.
The system of law, in every country is divided into that part which regulates the powers of the state, considered as a corporation or body politic; and that which regulates the conduct of the several members of which this corporation is composed. The former is the government, the law which constitutes; the latter, the law which is constituted. The former may with propriety, though not in the common acceptation be called the public; the latter the private law.
To government belongs the province of appointing judges for the determination of law-suits; of establishing an armed force,<286> to secure internal tranquillity as well as for defence against foreign enemies; and also, in cases where the dictates of justice are silent, that of superadding to the private law such positive regulations or statutes, as peculiar conjunctures may render necessary or expedient. It is evident, therefore, that the state of the private law in any country must be entirely subordinate to the nature of its government; and that according to the merit or demerit of the latter, will be the excellence or deficiency of the former. The origin and progress of different public institutions, and the manner in which they have arisen, and been variously modified, from the circumstances of mankind, and from the different improvements in society, are on this account, objects of great curiosity, which present an important and leading speculation in the natural history of law.
All government appears to be ultimately derived from two great principles. The first which I shall call authority, is the immediate effect of the peculiar qualities or circumstances, by which any one member of society may be exalted above another. The<287> second is the consideration of the advantages to be derived from any political establishment.
1. Superior bodily qualities, agility, strength; dexterity of hand, especially in using the weapons employed in fighting; as well as uncommon mental endowments; wisdom, knowledge, fidelity, generosity, courage, are the natural sources of admiration and respect, and consequently of deference and submission. A school-boy, superior to his companions in courage and feats of activity, becomes often a leader of the school, and acquires a very despotic authority. The strongest man of a parish assumes a pre-eminence in their common diversions, and is held up as their champion in every match or contest with their neighbours. The patriarchal government in the primitive ages of the world, and the authority possessed by the leaders of barbarous tribes in those periods which preceded the accumulation of property, are known to have arisen from similar circumstances. The heroes and demi-gods of antiquity, were indebted solely to their valour, and their<288> wonderful exploits, for that enthusiastic admiration which they excited, and for that sovereign power to which they were frequently exalted.
The acquisition of property, whether derived from occupancy and labour in conformity to the rules of justice, or from robbery and oppression, in defiance of every law, human and divine, became another and a more extensive source of authority. Wealth, however improperly in the eye of a strict moralist, seldom fails to procure a degree of admiration and respect. The poor are attracted and dazzled by the apparent happiness and splendour of the rich; and they regard a man of large fortune with a sort of wonder, and partial prepossession, which disposes them to magnify and over-rate all his advantages.10 If they are so far beneath him as not to be soured by the malignity of envy, they behold with pleasure and satisfaction the sumptuousness of his table, the magnificence of his equipage, the facility and quickness with which he is whirled from place to place, the number of his attendants, the readiness with which they<289> observe all his movements, and run to promote his wishes. Delighted with a situation which appears to them so agreeable, and catching from each other the contagion of sympathetic feelings, they are often prompted by an enthusiastic fervor, to exalt his dignity, to promote his enjoyments, and to favour his pursuits. Without distinguishing the objects which figure in their imagination, they transfer to his person that superiority which belongs properly to his condition, and are struck with those accomplishments, and modes of behaviour, which his education has taught him to acquire, and which his rank and circumstances have rendered habitual to him. They are of course embarrassed in his presence by impressions of awe and reverence, and losing sometimes the exercise of their natural powers are sunk in abasement and stupidity.*
The authority, however, of the rich over the poor is, doubtless, chiefly supported by selfish considerations. As in spending a<290> great fortune, the owner gives employment, and consequently subsistence to many individuals, all those who, in this manner, obtain or expect any advantage have more or less an interest in paying him respect and submission. The influence which may be traced from this origin, operates in such various directions, is distributed in such different proportions, and so diffused through every corner of society, that it appears in its degree and extent to be incalculable. Uncommon personal talents occur but seldom; and the sphere of their activity, so to speak, is often very limited. But the inequalities in the division of wealth are varied without end; and though their effect is greater in some situations of mankind than in others, they never cease, in any, to introduce a correspondent gradation and subordination of ranks.
These original circumstances, from which authority is derived, are gradually confirmed and strengthened by their having long continued to flow in the same channel. The force of habit, the great controuler and governor of our actions, is in nothing more<291> remarkable than in promoting the respect and submission claimed by our superiors. By living in a state of inferiority and dependence, the mind is inured to subjection; and the ascendant which has been once gained is gradually rendered more complete and powerful.
But the force of habit is much more effectual in confirming the authority derived from wealth, than that which is founded on personal qualities. The superior endowments, either of the body or of the mind, can seldom operate very long in the same direction. The son of an eminent general, or poet, or statesman, is most commonly remarkable for none of the splendid abilities by which the father was distinguished; at the same time, that we behold him in a contrasted light, which deepens the shade of his deficiency. The case is different with relation to wealth, which, in the ordinary course of things, is transmitted, by lineal succession, from father to son; and remains for many generations in the same family. The possessor of that estate, therefore, who<292> bears the name, and who exercises the powers which belonged to his ancestors, obtains not only the original means of creating dependence which they enjoyed, but seems to inherit, in some degree, that consideration and respect, that influence or attachment, which, by their high station, and by the distribution of their favours during a long period they were able to accumulate.11 This is the origin of what is called birth, as the foundation of authority, which creates a popular prepossession for the representative of an ancient family, giving him the preference to an upstart, though the latter should possess greater abilities and virtues.
From the operation of these different circumstances; from the accidental superiority of personal qualities, and from the unequal distribution of wealth, aided and confirmed by the force of habit, systems of government have grown up, and been variously modified, without exciting any inquiry into their consequences, and without leading the people to examine the grounds of their submission to the constituted authorities.<293>
2. But when, in the course of political transactions, particular persons grossly abuse their powers, or when competitions arise among individuals possessing influence and authority, and of consequence parties are formed, who espouse the interest of the respective leaders, the public attention is= roused to scrutinize the pretensions of the several candidates, to compare the different modes of government which they may propose to introduce, and to examine their title to demand obedience from the rest of the community.
In such inquiries, it is hardly possible to avoid suggesting another principle, more satisfactory than that of mere authority; the general utility of government; or rather its absolute necessity, for preventing the disorders incident to human society. Without a subordination of ranks, without a power, vested in some men, to controul and direct the behaviour of others, and calculated to produce a system of uniform and consistent operations, it is impossible that a multitude of persons, living together, should be induced to resign their own pri-<294>vate interest, to subdue their opposite and jarring passions, and regularly to promote the general happiness.
There are natural rights, which belong to mankind antecedent to the formation of civil society. We may easily conceive, that, in a state of nature, we should be entitled to maintain our personal safety, to exercise our natural liberty, so far as it does not encroach upon the rights of others; and even to maintain a property in those things which we have come to possess, by original occupancy, or by our labour in producing them. These rights are not lost, though they may be differently modified when we enter into society. A part of them, doubtless, must be resigned for the sake of those advantages to be derived from the social state. We must resign, for example, the privilege of avenging injuries, for the advantage of being protected by courts of justice. We must give up a part of our property, that the public may be enabled to afford that protection. We must yield obedience to the legislative power, that we may enjoy that good order and tranquillity to be expected from its cool and<295> dispassionate regulations. But the rights which we resign, ought, in all these cases, to be compensated by the advantages obtained; and the restraints, or burdens imposed, ought neither to be greater, nor more numerous, than are necessary for the general prosperity and happiness.
Were we to examine, according to this criterion, the various political systems which take place in the world, how many might be weighed in the balance and found wanting? Some are defective by too great strictness of regulation, confining and hampering natural liberty by minute and trivial restraints; more have deviated widely from the purpose by too great laxity, admitting, an excessive license to the various modifications of knavery and violence; but the greatest number have almost totally failed in producing happiness or security, from the tyranny of individuals, or of particular orders and ranks, who, by the accidental concurrence of circumstances, acquiring exorbitant power, have reduced their fellow-citizens into a state of servile subjection. It is a mortifying reflection, to observe, that,<296> while many other branches of knowledge have attained a high degree of maturity, the master-piece of science, the guardian of rights, and of every thing valuable, should, in many enlightened parts of the world, still remain in a state of gross imperfection. Even in countries where the people have made vigorous efforts to meliorate their government, how often has the collusion of parties, the opposite attraction of public and private interest, the fermentation of numberless discordant elements, produced nothing at last but a residue of despotism.
It may here be remarked, that, when a political constitution is happily constructed, it not only excites approbation from the ultimate view of its beneficial tendency, but, like a complex machine, in which various wheels and springs are nicely adjusted, it affords additional pleasure, from our sense of order and beautiful arrangement.12 If we are pleased with the survey of a well-regulated farm or workhouse, in which there is nothing slovenly or misplaced, nothing lost or superfluous, but in which every opera-<297>tion, and every article of expence, is directed to the best advantage, how much greater satisfaction must we receive, in beholding the same regular disposition of parts, the same happy adjustment of means to a beneficial purpose, exhibited in a system so complicated and extensive, as to comprehend the moral and political movements of a great nation?
In England, where the attention of the inhabitants has been long directed to speculations of this nature, the two original principles of government, which I have mentioned, were distinguished by political writers as far back, at least, as the commencement of the contest between the king and the people, upon the accession of the House of Stewart, and were then respectively patronized and adopted by the two great parties into which the nation was divided. The principle of authority was that of the tories; by which they endeavoured to justify the pretensions of the sovereign to absolute power.13 As the dignity of the monarch excited universal respect and<298> reverence, and as it was not conferred by election, but had been immemorially possessed by a hereditary title, it was understood to be derived from the author of our nature, who has implanted in mankind the seeds of loyalty and allegiance. The monarch is, therefore, not accountable to his subjects, but only to the Deity, by whom he is appointed; and consequently his power, so far as we are concerned, is absolute; requiring, on our part, an unlimited passive obedience. If guilty of tyranny and oppression, he may be called to an account in the next world, for transgressing the laws of his Maker; but, in this life, he is totally exempted from all restraint or punishment; and the people, whom heaven in its anger has visited with this affliction, have no other resource than prayers and supplications.
The whigs, on the other hand, founded the power of a sovereign, and of all inferior magistrates and rulers, upon the principle of utility. They maintained, that as all government is intended for defending the natural rights of mankind, and for promoting the happiness of human society, every<299> exertion of power in governors, inconsistent with that end, is illegal and criminal; and it is the height of absurdity to suppose, that, when an illegal and unwarrantable power is usurped, the people have no right to resist the exercise of it by punishing the usurper. The power of a king is no otherwise of Divine appointment than any other event which happens in the dispositions of Providence; and, in the share of government which is devolved upon him, he is no more the vicegerent of God Almighty than any inferior officer, to whom the smallest or meanest branch of administration is committed.
At the same time that the whigs considered the good of society as the foundation of our submission to government, they attempted to modify and confirm that principle by the additional principle of consent. As the union of mankind in society is a matter of choice, the particular form of government introduced into any country depends, in like manner, upon the inclination of the inhabitants. According to the general current of popular opinion, they adopt certain<300> political arrangements, and submit to different rulers and magistrates, either by positive regulation and express contracts, or by acting in such a manner as gives room to infer a tacit agreement. As government, therefore, arose from a contract, or rather a number of contracts, either expressed or implied, among the different members of society, the terms of submission between the governors and the governed, as well as the right of punishing either party, upon a violation of those original agreements, may thence be easily and clearly ascertained.
With respect to this origin of the duty of allegiance, which has been much insisted on by the principal writers in this country, and which has of late been dressed and presented in different shapes by politicians on the continent,14 it seems rather to be a peculiar explanation and view of the former principle of utility, than any new or separate ground of our submission to government; and even, when considered in this light, it must be admitted with such precautions and limitations, that very little advantage is gained by it.<301>
The obligation of a contract is liable in all cases, to be controuled and modified by considerations of general utility; and a promise inconsistent with any great interest of society is not productive of moral obligation. In reality, men, when they come into society, are bound to preserve the natural rights of one another; and, consequently, to establish a government conducive to that end. Good government is necessary to prevent robbery, murder, and oppression; and if a man be supposed to have promised, that he would support or obey a government of an opposite tendency, it would be his duty to break such an illegal compact, and to reform such an unjust constitution.
The addition of a promise, at the same time, appears but little to increase the weight of that previous obligation. The obligation to abstain from murder, receives but little additional strength by our giving a promise to that effect.
It seems, indeed, to be a maxim universally admitted, that every nation is entitled to regulate its own government; but this<302> proceeds upon the presumption that every nation is the best judge of what is expedient in its peculiar circumstances, and is likely to receive most benefit from that peculiar constitution which is introduced by the voice of the majority. The maxim, therefore, must be understood with exception of such political arrangements as are evidently tyrannical, and is applicable to such forms of government only, as in point of expediency, admit of different opinions.
It is understood, on the other hand, that no foreign state is entitled to controul or restrain its neighbours, in modelling and establishing their own political system; because, whatever pretences for such interference may be assumed, it never is dictated by a benevolent purpose, but commonly proceeds from selfish and sinister motives. As different states have always a separate, and very frequently an opposite interest, it must be expected that each will invariably pursue its own; and that, in seeking to aggrandize itself, the constant object of its policy, whether professed or concealed, will be to limit the power, and prevent the<303> aggrandizement of its neighbours. There could not, therefore, exist a more fatal calamity to any country, than that its administration and government should be settled under the direction of its neighbours.15
There occur, at the same time, a variety of circumstances, in which it should seem, that the inhabitants of a country, by living under the protection of its laws, give no good reason to infer a tacit promise of submission to its government.
It would be absurd to suppose, that the inhabitants of Turkey have given a free consent to support that government under which they live. Even in other countries, less benumbed with ignorance and stupidity, or sunk in the lethargy of despotism, a great part of the inhabitants feel themselves under a sort of necessity to remain, where the language and habits of life are familiar to them, where they enjoy the comfortable intercourse of their friends, and where they have already secured the regular means of subsistence. Their submission to the government is, therefore, extorted by the prospect of those inconveniences which would attend<304> their emigration; and if it were at all to be regarded in the light of a promise, would be such a one as ought to be set aside from equitable considerations.
When we examine historically the extent of the tory, and of the whig principle, it seems evident, that from the progress of arts and commerce, the former has been continually diminishing, and the latter gaining ground in the same proportion. In England, so late as the year 1688—
“The right divine of kings to govern ill,”16
was a doctrine still embraced in general by the landed gentry, by the church, and by a great part of the nation; and had it not been for the terror of popery, the revolution at that time would not have taken place. Since that period, however, there has been a gradual progress of opinions. Philosophy has been constantly advancing in all the departments of science; has been employed in reducing all the works of art, all the appearances of nature, to their principles; and has not neglected to push her researches into political, as well as other branches of specu-<305>lation. The mysteries of government have been more and more unveiled; and the circumstances which contribute to the perfection of the social order have been laid open. The degrees of power committed to individuals, have been placed on their proper basis; and the chief magistrate, when stript of his artificial trappings, and when the mist of prepossession which had surrounded him is dispelled, appears naked, and without disguise, the real servant of the people, appointed for the important purpose of superintending, and putting in motion the great political machine. The blind respect and reverence paid to ancient institutions has given place to a desire of examining their uses, of criticising their defects, and of appreciating their true merits. The fashion of scrutinizing public measures, according to the standard of their utility, has now become very universal; it pervades the literary circles, together with a great part of the middling ranks, and is visibly descending to the lower orders of the people.
During the rebellion in 1745, a gentleman of some eminence, who had embarked<306> in that ridiculous project, is said to have distinguished himself, by defending the measure upon what were called whig principles. This was, at that time regarded as a novelty, and was far from being well received by his associates; but so great has been the progress of opinion since that period, that the more liberal part of the tories have now caught universally the mode of reasoning employed by their adversaries, and are accustomed to justify the degree of monarchical power which they wish to establish, not by asserting that it is the inherent birthright of the sovereign, but by maintaining that it is necessary for the suppression of tumult and disorder.
Even that hardy race,17 who formerly issued from their mountains to attack him whom they considered as the usurper of the throne, are long since fully reconciled to the beneficial government of a German elector, raised by an act of parliament to the sovereignty of a free people.* <307>
The whigs themselves have not been exempted from the progressive operation of the same circumstances, which have gradually exalted their speculative principles, and occasioned a proportional change in their practical system. It cannot be overlooked, that the disposition to pry into the abuses of government is likely to suggest limitations in the power of rulers; and when a people at large employ themselves in discussing the advantages arising from different political arrangements, they must feel a bias in favour of that system, which tends to the equalization of ranks, and the diffusion of popular privileges.*
The despotism, which had long been deeply rooted upon the neighbouring continent, checked the progress of political speculation, and taught the people, not only to suffer, but even to exult in their fetters.<308> Philosophy, however, triumphed at length over ancient customs; and the light of science, which had long been diffused in every other department, discovered the rights of man, and the true principles of government.18 The nation awoke, as from a dream of horror and distress. Their enthusiasm in correcting abuses and in propagating the new system, rose to a height proportioned to the danger which they had escaped, and the obstacles which they had to surmount. It bore down all opposition; it swept away those corrupt institutions which had been the work of ages; it levelled with the dust those bulwarks which avarice and ambition had erected for maintaining their encroachments; but unhappily, in the general wreck of opinions, it overthrew those banks and landmarks, which while they defended the civil rights of the inhabitants, might have contributed to direct and regulate the new establishment.
It seems worthy of remark, that when the new system in France appeared likely to spread over the rest of Europe, the alarm and panic which it struck among the in-<309>habitants of this country, was chiefly excited by a prospect of the dangers with which they were threatened, and the arguments employed in opposing and combating that system, were drawn entirely from the anarchy and confusion, the destruction of all rights and liberties, religious and civil, with which it would be attended; and the chief alarmists were taken from that class of men who had been denominated whigs.
Upon the whole, it is evident that the diffusion of knowledge tends more and more, to encourage and bring forward the principle of utility in all political discussions; but we must not thence conclude that the influence of mere authority, operating without reflection, is entirely useless. From the dispositions of mankind to pay respect and submission to superior personal qualities, and still more to a superiority of rank and station, together with that propensity which every one feels to continue in those modes of action to which he has long been accustomed, the great body of the people, who have commonly neither leisure nor capacity to weigh the advantages of public regulations, are<310> prevented from indulging their unruly passions, and retained in subjection to the magistrate. The same dispositions contribute in some degree to restrain those rash and visionary projects, which proceed from the ambition of statesmen, or the wanton desire of innovation, and by which nations are exposed to the most dreadful calamities. Those feelings of the human mind, which give rise to authority, may be regarded as the wise provision of nature for supporting the order and government of society; and they are only to be regretted and censured, when, by exceeding their proper bounds, they no longer act in subordination to the good of mankind, but are made, as happens, indeed, very often, the instruments of tyranny and oppression.<311>
[1. ]Millar’s discussion in this chapter of morality as a cultivation of sentiments, his sharp distinction between justice and the other virtues, and his account of justice as the basis for the legal system is an epitome of the theory developed by Smith in reaction to premises laid down by Hume. Nearly every paragraph of the chapter can be seen as an echo or discussion of parts of Smith’s TMS and LJ.
[2. ]Solomon was king of the Hebrews ca. 970–ca. 930 ; his wisdom is proverbial. Proverbs and Ecclesiastes are ascribed to him. Agur was a contributor of proverbs mentioned in Prov. 30:1, and the Prayer of Agur in Prov. 30:7–9 is the best-known part of his writing. The Wisdom of Jesus, the Son of Sirach is another name for an apocryphal book of the Old Testament, and its main themes are the excellence and teaching of wisdom. Hesiod is one of the earliest-known Greek poets; he was active around 700 He wrote the Theogony, an epic poem on the origin of the gods and the earth, and Works and Days, which through myths and proverbial maxims offered advice for living a life of honest work.
[3. ]The Fables of Bidpai (Pilpay) was the European title for the collection of animal fables known in Sanskrit as Panca-tantra that offered instruction in statecraft to the king’s sons. The collection dates from ca. 200, and Millar is referring to the Persian version, which was translated into several European languages as the Fables of Bidpai (or Pilpay), a corruption of Vidyapati, a wise Brahmin who figures in them. Aesop was a legendary Greek fabulist usually placed as a Phrygian slave in the sixth century
[4. ]Jean de la Fontaine’s Fables (1668–94) were basic to the modern fashion, e.g. Bernard Mandeville’s Fable of the Bees (1714; 1723), Jonathan Swift’s Gulliver’s Travels (1726), John Gay’s Fables (1727; 1738), and many others.
[5. ]The moral virtues on which other virtues hinge. The four cardinal virtues are prudence, temperance, fortitude, and justice. They are distinguished from the theological virtues in that they are attainable by our natural powers and do not require an infusion of divine grace.
[6. ]Pythagoras (ca. 582–ca. 507 ) was a pre-Socratic Greek philosopher.
[7. ]Hugo Grotius (1583–1645): Dutch diplomat, jurist, and theologian. His main work, De Jure Belli ac Pacis (1625), was fundamental to the development of natural law theory in the seventeenth and eighteenth centuries. A second key figure was Samuel Pufendorf (1632–94), author of De Jure Naturae et Gentium (1672) and De Officio Hominis et Civis (1673).
[8. ]In this passage Millar gives a brief genealogy of his own profession as a teacher of law, drawing a line between the earlier speculations of Grotius and Pufendorf and the new, more historically framed works of Montesquieu, Kames, and Smith, who were his own great teachers. The remainder of this chapter is replete with the influence of these thinkers and is particularly close to Smith’s lectures on jurisprudence (which Millar audited twice).
[9. ]Henry Home, Lord Kames (1696–1782): Scottish judge and author of works on philosophy, jurisprudence, theology, education, literary criticism, history, antiquities, and agriculture. He was a mentor to Millar, who had served as tutor in his home as a young man. His major works include Essays on the Principles of Morality and Natural Religion (1751), Historical Law-Tracts (1758), Principles of Equity (1760), Elements of Criticism (1762), and Sketches of the History of Man (1774).
[10. ]The esteem with which the poor regard the rich is a major theme in Smith’s Theory of Moral Sentiments: “When we consider the condition of the great, in those delusive colours in which the imagination is apt to paint it, it seems to be almost the abstract idea of a perfect and happy state. It is the very state which, in all our waking dreams and idle reveries, we had sketched out to ourselves as the final object of all our desires. We feel, therefore, a peculiar sympathy with the satisfaction of those who are in it. We favour all their inclinations and forward all their wishes.” See TMS, 51–52.
[* ]Theory of Moral Sentiments.
[11. ]See Hume on “long possession” as “that which gives authority to almost all the establish’d governments of the world.” A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford: Oxford University Press, 2000), 356.
[12. ]Smith similarly emphasized the combination of aesthetic and utilitarian motives in the “machine” of government: “The perfection of police, the extension of trade and manufactures, are noble and magnificent objects. The contemplation of them pleases us, and we are interested in whatever can tend to advance them. They make part of the great system of government, and the wheels of the political machine seem to move with more harmony and ease by means of them. We take pleasure in beholding the perfection of so beautiful and grand a system, and we are uneasy till we remove any obstruction that can in the least disturb or encumber the regularity of its motions. All constitutions of government, however, are valued only in proportion as they tend to promote the happiness of those who live under them. This is their sole use and end.” See TMS, 185.
[13. ]Millar’s outline of the principles of authority vs. utility as the leading doctrines of the Tory and Whig parties can be compared with his more historical discussion of these same divisions in vol. 3.
[14. ]Millar is referring to the use of contract ideas and rhetoric in the French Revolution.
[15. ]Millar’s argument here echoes his charge in the Letters of Crito (1796) against the hypocrisy of the British government’s attempt to overthrow the revolutionary regime in France.
[16. ]Alexander Pope, Dunciad, bk. 4, line 188.
[17. ]The Scottish Highlanders, who long retained their Jacobite loyalty to the exiled Stuarts.
[* ]See Addison’s verses to Sir Godfrey Kneller.
[* ]Hence the distinction between the old and the new whigs, by which a famous political character endeavoured lately to cover the desertion of his former tenets; and hence too a pretty general suspicion, that many nominal adherents of that party have become secret admirers of democracy.
[18. ]Millar is referring, of course, to the outbreak of the French Revolution and the framing of the Declaration of the Rights of Man (1789).